Under Section 6004 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Caltrans assumed FHWA's
responsibilities for determining if a transportation project qualifies for a
Categorical Exclusion (CE) – a type of NEPA action that does not involve
significant environmental impacts. For these categorically excluded projects,
Caltrans also assumed FHWA's responsibilities for
coordination and consultation under other federal environmental laws such as
the Endangered Species Act, Clean Water Act, and National Historic Preservation
Act.

On June 7, 2010, Caltrans and FHWA renewed the 23 USC 326 Assignment Memorandum of Understanding (MOU) under which FHWA continues to assign FHWA’s Federal authority and responsibility for determining whether certain projects are categorically excluded from preparation of an environmental assessment or an environmental impact statement under the National Environmental Policy Act (NEPA). The MOU renewal also continues to assign to Caltrans FHWA’s responsibility for conducting environmental review, consultation, and other related activities under federal environmental laws. The new 23 USC 326 Assignment MOU was signed on June 7, 2010 and expires on June 7, 2013. Click here to view the MOU.

Assembly Bill 892

On October 6, 2011, Governor Jerry Brown signed Assembly Bill 892, extending Caltrans' waiver of sovereign immunity. The waiver provides for Caltrans' continued participation in both the 23 USC 327 NEPA Assignment Program and 23 USC 326 Categorical Exclusion (CE) Assignment Program until January 1, 2017.

Related Documents

The following documents were released as a result of the CE MOU under Section 6004 of SAFETEA - LU:

Memorandum of Understanding

On June 7, 2010, Caltrans renewed a formal Memorandum of Understanding (MOU) with FHWA to continue to assume responsibility for categorically excluded transportation projects. The MOU outlines specific terms that describe Caltrans’ roles and responsibilities under the assignment program. FHWA will monitor Caltrans’ compliance with the 23 USC 326 MOU. Caltrans will carry out regular quality control activities to ensure that its CE determinations are made in accordance with applicable law and with the MOU.

The draft MOU underwent a 30-day public review period that closed on May 14, 2010.

What are Categorical Exclusions?

Categorical Exclusions (CEs) are a category of NEPA actions
that do not have a significant individual or cumulative effect on the environment.
If a project is determined to be categorically excluded, preparation of a NEPA
document (an environmental impact statement or an environmental assessment)
is not required. Categorically excluded projects must still comply with the
permitting and consultation requirements of other federal environmental regulations,
which may require the development of avoidance, minimization, or mitigation
strategies, if any are necessary.

FHWA defines its CEs in regulations at 23 CFR 771.117, where
they are divided into two groups based on a transportation project potential
for environmental effects:

The first group, listed in 23 CRF 771.117(c) (called the "c"
list), consists of actions that almost never cause significant environmental
impacts, for instance, minor construction activities such as bicycle lanes
or landscaping. These actions are automatically classified as CEs, except
where "unusual circumstances" occur. Unusual circumstances can
occur, for example, if a project is controversial on environmental grounds
or if it is determined that a project involves significant environmental effects.
If significant environmental effects are involved, an environmental document
must be prepared.

The second group, listed in 23 CFR 771.117(d) (the "d" list),
are examples of actions that normally do not result in significant environmental
effects, but for which studies must be prepared to document that a specific
project will not result in a significant environmental effect.

Scope of CE Responsibility

Under 23 USC 326, Caltrans assumed responsibility for
approving CEs on the "c" list and those CEs listed as examples on
the "d" list. In addition, states could propose additional actions
that qualify as CEs under the "d" list, provided that documentation
is presented to FHWA justifying these additions. Caltrans added seven
additional actions as categorical exclusions. Caltrans developed the proposed
additions based on reviewing the types of activities that FHWA and Caltrans
have historically approved as CEs in California. Appendix A
of the 23 USC 326 CE Assignment
MOU lists the additional CE actions. For projects that
are not on the "c" or "d" list or the Appendix A list,
but for which a CE classification is appropriate, Caltrans assumed responsibility
under the Section 6005 Surface Transportation Project Delivery Pilot Program.

Caltrans prepared a background paper to support designating
seven additional actions as CEs.

Waiver of Sovereign Immunity

Under the 23 USC 326 CE Assignment and the 23 USC 327 NEPA Assignment programs,
California assumed sole responsibility and liability for its NEPA actions
and decisions and is subject to Federal court jurisdiction. To do this,
California waived its 11th amendment right to sovereign immunity against actions
brought by its citizens in federal court for the narrow purposes of the pilot
program. The waiver was enacted as part of AB 1039 in the spring of 2006 and
became effective in November 2006 when the transportation bond (Proposition 1B) was passed by the voters. In the summer of 2008, the Waiver was extended until January 1, 2012 through AB 2650. In the fall of 2011, the waiver was extended again until January 1, 2017 through AB 892.